A blog on practice in the Nation’s second-most powerful court

The D.C. Circuit as a local court?

The D.C. Circuit is known as the Nation’s second-most powerful court largely because it often reviews decisions of the federal government.  But that was not foreordained.  Jurisdiction could just as easily have been placed elsewhere—say, in the circuit that felt the brunt of the government’s decision.  And sure enough, for most of the D.C. Circuit’s history, it was not primarily a federal court.  It was a local court, hearing appeals familiar to any state supreme court.  In fact, the U.S. Code didn’t list the D.C. Circuit as a federal circuit court until 1948.

These and other fascinating facts about the D.C. Circuit’s history can be found in an enlightening (and at times humorous) lecture given by Chief Justice John Roberts.  See J. Roberts, Jr., Lecture:  What Makes the D.C. Circuit Different?  A Historical View, 92 Va. L. Rev. 375 (May 2006). 

Here are some others, which will interest anyone practicing in the D.C. Circuit:

  • The D.C. Circuit survived being abolished by Thomas Jefferson in his infamous 1801 purge of federalist judges in part because it was the local court for D.C.—and D.C. needed a local court.
  • The D.C. Circuit’s authority over actions of the federal government began with a decision of William Cranch, who is best known as the reporter of U.S. Supreme Court decisions, but who sat on the D.C. Circuit for 54 years.  In 1837, Cranch held for the D.C. Circuit that it had mandamus power over federal officials—a power no other federal court had because mandamus was a state-court writ, and a power no other state court had because state judges lacked authority over federal officials.  Because the D.C. Circuit had both federal and state power, Cranch held, it could mandamus federal officials.  Immediately, the Van Buren Administration tried to strip this authority—but failed.  And so, for the next 125 years, the D.C. Circuit was the only federal court that could mandamus the federal government.
  • When the D.C. Circuit attempted to exercise habeas corpus authority over Union soldiers, Abraham Lincoln and the Republican Congress abolished the court and created a new court, which at first was called the Supreme Court of the District of Columbia.
  • For almost 50 years, from 1870 to 1929, the D.C. Circuit heard patent appeals.  The appeals arose from decisions of the Commissioner of Patents, who later was replaced by the Court of Customs and Patent Appeals (which was replaced by the Federal Circuit).
  • D.C. Circuit judges were not recognized by the U.S. Supreme Court as Article III judges until 1933, in a 6-3 (!) decision.  O’Donoghue v. United States, 289 U.S. 516, 535 (1933).
  • The D.C. Circuit was not divested of its local jurisdiction until 1970, when “Home Rule” was established for D.C. and local appeals were routed to the newly created D.C. Court of Appeals.
  • Thanks to the D.C. Circuit’s experience hearing patent appeals and mandamus proceedings, Congress began routing appeals from the swelling administrative state to the D.C. Circuit.  By the time the D.C. Circuit lost its local jurisdiction in 1970, broad federal jurisdiction over agency actions had grown up to take its place.

Statistics show how thoroughly the caseload has changed.  As of June 2020, 55% of pending cases were appeals from federal agencies, and another 19% involved the federal government appearing in some other form of civil litigation.  All told, 74% of D.C. Circuit cases involved the United States.